Alleged Perjury Escalates Case Against Deaver

WASHINGTON —  There is one lesson that some federal officials have learned the hard way: It’s not only what you do but what you say about it later, especially if you say it under oath, that can get you into trouble.

During the Watergate era, for example, more than a dozen officials of Richard M. Nixon’s Administration, including former Atty. Gen. John N. Mitchell and former top White House aides H. R. Haldeman, John D. Ehrlichman and Dwight Chapin, were convicted of perjury for lying about their actions.

Wrongdoing Denied

And now the same specter faces Washington lobbyist Michael K. Deaver, President Reagan’s former close aide, who has repeatedly denied any wrongdoing and expressed confidence that he will be cleared.

Until last week, Deaver was merely the target of a federal investigation probing whether he had violated a law that restricts the activities of one-time government officials who seek to lobby their former colleagues.

That investigation, while hardly comforting, posed a relatively minor threat to Deaver.

Fuzzy Area of Conduct

The 1978 law attempts to regulate a fuzzy area of conduct. It has long been common practice in Washington for former government officials and members of Congress to use their contacts and expertise to build lucrative second careers as lawyers and lobbyists. So murky is the line between what is proper and improper that the law has been used for fewer than a dozen prosecutions--and most of those have failed.

John C. Keeney, a senior Justice Department official, said juries “are disinclined to convict for technical criminal violations which cannot be shown to have resulted in harm.”

But now Deaver is facing a much more serious threat. A House subcommittee last week recommended unanimously that Whitney North Seymour Jr., the court-appointed independent counsel who is investigating Deaver, consider perjury charges against him.

Violation of the 1978 Ethics in Government Act, which regulates lobbying by former government officials, carries a maximum prison term of only two years. Perjury, by contrast, is punishable by up to five years in prison.

Beyond that, legal authorities said the perjury accusation moved Seymour’s inquiry from a gray area of the law to one that is painted in black and white.

One-Year Time Limit

Although the Ethics in Government Act prohibits one-time officials from lobbying their former colleagues for a year--and forbids them ever to lobby on issues they dealt with while in office--lobbyists can sometimes find indirect ways to accomplish what the law bans directly.

“Laws and regulations like the Ethics in Government Act can only go so far,” said Ray Kline, president of the National Academy of Public Administration, a congressionally chartered organization that studies governmental problems. “You ultimately come down to questions of discretion and good judgment, and that depends on the quality of people whom a President appoints.”

Perjury, by contrast, is what Washington lawyer David M. Dorsen, a former New York prosecutor and Senate Watergate Committee investigator, called “a real honest-to-goodness crime.” It is “one of the most serious crimes affecting white-collar defendants,” he said.

“In the case of many statutes, you can argue that what you did was innocent,” Dorsen said. “But with perjury, there is no such argument. It requires very specific intent and knowledge.”

Closed Testimony

Seymour’s conflict-of-interest investigation will examine allegations involving Deaver’s representation of the Canadian government on the acid rain issue, of Rockwell International Corp. on the B-1 bomber and of a U.S. brokerage firm working with Japanese investors seeking Puerto Rican tax credits. All these subjects arose during Deaver’s closed testimony on May 16 to the House Energy and Commerce subcommittee on oversight and investigations.

And all of them resulted in perjury allegations. Although the committee’s chairman, Rep. John D. Dingell (D-Mich.), is regarded as a highly partisan Democrat, the motion to refer the perjury accusation to the independent counsel won the unanimous approval of the subcommittee’s seven Republicans as well as 10 Democrats. Congressional sources said Seymour’s aides promptly picked up hearing transcripts and other material provided by the subcommittee.

Public records show Deaver’s alleged perjury is based partly on his failure to tell the subcommittee, under intense questioning, about lobbying contacts with U.S. ambassadors in West Germany and Japan and with Robert C. McFarlane, who at the time was Reagan’s national security adviser.

Transcript Released

But Dingell said in a memorandum that Deaver and his attorneys had been notified before his appearance before the subcommittee on May 16 that he would be questioned about his contacts with U.S. ambassadors abroad. The recently released transcript of Deaver’s testimony shows that after he mentioned contacting the ambassadors to Korea, Singapore and India, the following exchange took place:

Question: Let’s go down the countries. You mentioned Korea, Singapore and India. Any other countries that you recall you had discussions with the ambassador?

Answer: Saudi Arabia is the only other country and I don’t even know who the ambassador is there.

Q: But you did have discussions with the ambassador.

A: I did not.

Q. So you had no more discussions with U.S. ambassadors subsequent to your leaving the White House.

A: No.

Letters, Calls Came First

The subcommittee said it later learned from the State Department that Deaver had visited U.S. Ambassador Mike Mansfield in Tokyo last January and had paid a similar visit to U.S. Ambassador Richard Burt in Bonn last February. Both visits followed an exchange of letters or phone calls between Deaver and the envoys.

In Mansfield’s case, Deaver vainly sought the ambassador’s support for Puerto Rican tax credits on behalf of Japanese investors he was representing. In the case of Burt, in whose residence he stayed, Deaver unsuccessfully tried to enlist the ambassador’s aid in obtaining a contract with the city of Berlin to publicize its 750th anniversary in 1987. He had a later conversation with Burt about the matter at a Washington luncheon in March, according to Burt.

The House subcommittee charged that Deaver also lied when he was asked about any contacts he had with James C. Miller III, director of the President’s Office of Management and Budget, or anyone at the National Security Council.

‘The Only Two I Can Recall’

Deaver responded by mentioning a meeting with Miller earlier this year and added that an assistant had contacted William Martin, an official of the NSC. When pressed on whether there had been any other contacts by himself or his firm with OMB or NSC officials, the transcript showed that Deaver replied: “Those are the only two that I can recall.”

Dingell said in a memo to other members of the panel that subsequent to Deaver’s testimony, “the staff received information that Mr. Deaver had a significant telephone conversation in the summer of 1985 with Robert C. McFarlane, then assistant to the President for national security affairs and the highest-ranking staff person on the National Security Council. It has been determined that during this conversation, Mr. Deaver raised the issue of . . . the Puerto Rico tax credit.”

The third case of alleged perjury, the subcommittee said, involved Deaver’s description of a meeting last Feb. 27 with Budget Director Miller to enlist support for production of the B-1 bomber manufactured by Rockwell International, a Deaver client.

Lying Testimony Alleged

The subcommittee charged that Deaver lied in testifying he discussed the meeting with Rockwell officials both before and after it occurred. The hearing transcript shows the following exchange:

Q: Did you discuss your meeting with OMB Director Miller with Rockwell in advance?

A: I told them that I was going to call on Mr. Miller, yes.

Q: And did you report back to them following that meeting?

A: Yes, sir.

Q: And what did you report back?

A: Basically, what I have reported to you today: what transpired at the meeting, and that I was going to send on a list of questions that he (Miller) had requested.

Dingell said that Rockwell officials, both initially and after an internal company inquiry, said that “the first they learned of any meeting between Mr. Deaver and Mr. Miller was when it was reported in the press some weeks later.”

Possibly Weak Count

One independent legal authority, who spoke on condition he would not be identified, said this potential perjury count might be the weakest because a prosecutor might regard it as insignificant or lacking in materiality.

Deaver’s attorneys charged that “some members of the subcommittee’s staff have now spent three months trying desperately to find a ‘possible perjury’ charge . . . because they could find no substantive violation of a criminal law. Flyspecking 5 1/2 hours of testimony in a 42-page memo does not support a perjury charge.”

The attorneys said they have unspecified testimony and documents supporting Deaver’s testimony regarding his conversation with Miller. They contended that the claim that Deaver failed to disclose his meeting with Ambassadors Mansfield and Burt “is specious.” Deaver had no reason to hide those meetings and they would have been impossible to conceal in any event, they said. They declined comment on the charge regarding a Deaver-McFarlane conversation.

Before the development of possible perjury in the Deaver investigation, Seymour had been focusing on the charge that Deaver may have violated federal ethics provisions by lobbying on the acid rain issue for the Canadian government less than a year after leaving the White House and despite the fact that he had dealt with the issue while on the President’s senior staff.

Acid-Rain Involvement

The General Accounting Office said in a report that Deaver’s involvement with acid rain while serving in the White House was much more extensive than previously known.

The GAO, the investigative arm of Congress, said Deaver participated “personally and substantially” in at least 15 meetings at the White House on the pollution issue before leaving government in May, 1985. Then, according to the GAO, he represented Canada’s side of the issue in discussions last October with Drew Lewis, Reagan’s special envoy on acid rain.

Seymour, a former New York federal prosecutor during the Nixon Administration, has declined all requests for comment on the progress or scope of his inquiry into Deaver’s affairs. He has no legal deadline for completing it.

Washington attorney Herbert J. (Jack) Miller Jr., representing Deaver, noted that “there has been no complete investigation yet” pending Seymour’s final report. Miller predicted that Deaver would be exonerated.